BROWN & ROOT EALING TECHNICAL SERVICES LTD v MR N NORRIS & 134 OTHERS [1999] UKEAT 1090_99_2210

EMPLOYMENT APPEAL TRIBUNAL

BAILII case number: [1999] UKEAT 1090_99_2210

Case No Appeal No. EAT/1090/99

Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

Between

BROWN & ROOT EALING TECHNICAL SERVICES LTDAPPELLANT

MR N NORRIS & 134 OTHERSRESPONDENT

Before

His Honour Judge Altman Mr W Morris Professor P D Wickens

Date 22 October 1999

[1]APPEARANCES For the Appellants MR R HITCHCOCK (of Counsel) Instructed by Halliburton Law Department Beta Building, First Floor The Bilton Centre Cleeve Road Leatherhead Surrey KT22 7NF For the Respondents MR BANSEL (of Counsel) Instructed by Messrs Pattinson & Brewer Solicitors 30 Great James Street London WC1N 3HA JUDGE ALTMAN: This is an appeal from the order of the Employment Tribunal at London North on 7 October 1999 refusing a request for an adjournment of the part heard hearing of this main application listed for 1 November for some days. It is helpful to sketch very briefly the history that led to that application. On 16 June after a number of days hearing the Appellants raised for, we are told, the first time an argument that the transfer of undertakings regulations did not lead to the transactions being considered by the Tribunal as amounting to the transfer of an undertaking, or part of an undertaking, for the purpose of those regulations. This led to a need to adjourn the hearing and directions were given as to what should take place during the adjournment.

[2]The directions then given were that a Witness Statement was to be prepared by the Respondents to this appeal by a Mr Ewart which was to be disclosed to the Appellants by Monday 9 August 1999. An essential precondition for that to happen was the issuing by the Employment Tribunal of a witness Order because the employers of that witness were not prepared for the statement to be released without such an order. Consequential directions were made for the disclosure of company documents, further Witness Statements by 20 September, a new bundle by 4 October, written submissions and authorities by 18 October and a list of issues and a chronology by that date, and to furnish all that material to the Tribunal and final bundles by 25 October, a week before the hearing.

[3]The final hearing was then timetabled as to when the witnesses would be called to give evidence over a substantial number of days. Therefore, that was a carefully drawn timetable. But on 4 August, the solicitors for the Respondents had to write to the Employment Tribunal to request the witness order that had not then been served. On 10 August, the Appellants informed the Respondents of their concern about the delay and followed that up with a reminder on 17 August and a reply on the following day from the Respondents indicated they still had not received the order. On 19 August, having told the Appellants that that was what they were doing, the Respondents again wrote to the Tribunal and on 20 August the Appellants themselves wrote to the Respondents but copied that letter to the Tribunal, pointing out the severe problems caused by the delay and warning of a knock-on effect in relation to other directions.

[4]On 24 August, there was a communication between the parties and as late as 6 September the Appellants were constrained to write to the Employment Tribunal direct, pointing out the difficulty in complying with directions, asking for the letter to be placed before the Chairman and requesting more time for dealing with matters. Even after that letter it was not until 13 September, we have been told today, that the witness order was sent by the Tribunal but it had not been received by the following day when yet again the Respondent's solicitors had to write requesting it. There was then correspondence further between the parties and concern about the lack of progress. On 23 September the Appellants had still not received the statement of Mr Ewart which was ordered to have been with them on 9 August and so they wrote to the Employment Tribunal pointing out the problems that this had caused in relation to obtaining evidence from witnesses and going on:

"It is for this reason that the Respondent requests an adjournment of the hearing scheduled to reconvene for the period 1 November to 9 November 1999. The Respondent's take the view that their position will be severely prejudiced if the hearing were to be reconvened in November, not having had enough time to take full instructions in relation to Mr Ewart's Witness Statement and also any additional documents that may be disclosed."

[5]Again there was further delay and on 27 September, not having received a response from the Employment Tribunal, the Appellants wrote again adding to their concerns some more detail as to the difficulties. In a numbered paragraph the delays are referred to, the fact that it is a big case with substantial sums involved and pointing out that there was no risk of prejudice to the Respondents to this appeal if there were a delay. The request for an adjournment was renewed.

[6]In another letter of the same date, the Respondents sent in their submissions opposing the application. Again, not having had any response to the request for an adjournment, the Appellants sent their third letter to the Employment Tribunal on 4 October giving a little bit more detail saying that lead counsel for the Appellant was unavailable for the first three weeks of October, that one of the main witnesses was unavailable during the second and third week of October and asking for that also to be taken into account.

[7]Finally the order of 7 October was made and we deal with each of the reasons given for refusal. First it is said that the parties had known that the particular witness was to be a witness at the end of the last hearing. That is criticised on the basis that it is really what Mr Ewart said and not the fact of his existence that was the precondition for the Appellants to be able to prepare their case in any meaningful detail. Of course both propositions are correct. The knowledge of the existence of the witness and the knowledge of the issues which were being raised by the Appellants themselves were matters no doubt upon which substantial preparations could be begun, but of course until his statement was received the detail of what he said could not be countered and explored by witnesses and, as Mr Hitchcock has pointed out to us, the sequential nature of the order for Witness Statements made by the Chairman herself seems to support this. But there was material, it seems to us, upon which the existence of Mr Ewart as a known witness could found one of the reasons to be taken into account.

[8]Secondly, it was said that the introduction of leading counsel effectively for the first time part way through the case could hardly be a reason for adjourning. We are told that that is a misunderstanding of the reference to lead counsel in the application for an adjournment. It is simply that Mr Hitchcock is leading junior, leading Mrs Irons, and he has been involved all the way through and there was a misunderstanding about that. One can hardly criticise the Chairman for that misunderstanding and so far as we know it was not drawn to her attention by any subsequent representations to her, and therefore, we cannot accept that there is any error in law in her coming to that conclusion or taking it into account on the information before her at that time.

[9]Thirdly, it is said that this was effectively a 1997 case and that it is desirable for it to be heard without further delay. Again that in itself cannot be criticised. It seems to us it may not be fully realised by those who are not frequently in Industrial or Employment Tribunals that two years is an enormously long period of time for a case to come to a Tribunal. Finally, there is a suggestion that there should be amendments to the timetable.

[10]In his addressing us today, we have received a considerable body of information from Mr Hitchcock. He has pointed out that he himself has been heavily committed in other cases that have involved his time, not only in, but also outside the Court, during essentially the whole of October since the statement was received. Secondly, he has informed us that this is a case in which counsel themselves have been heavily involved in the actual preparatory work for the preparation of this case. Thirdly, he has pointed out the substantial difficulties of interviewing the witnesses. He has estimated that each of the main witnesses to be called by the Appellants will need about a week to "come up to speed" with the material and have conferences in order to finally prepare statements. It seems to those who know nothing about this case an extraordinary proposition relating to witnesses who are going to give evidence, no doubt of fact from their knowledge, that this is how long it takes for them to be able to do so.

[11]Nonetheless we accept that that is the view of experienced counsel appearing for the Appellant. The bundle of documents involved, 200-300 pages, and we have also heard of some of the steps that have been put in train to try to prepare in time for the hearing if this appeal is refused. A lot of ground work has been done, but Mr Hitchcock further anticipates that as to two new witnesses it would not be possible in the time to take statements and have them ready to give evidence. One witness the Managing Director, is away and will be away until next week. One of the senior Financial Managers, Mr Morgan, is away the whole of next week. Therefore, Mr Hitchcock tells us that his ability to conduct this case properly for his clients has been strongly prejudiced and he rightly points out that the difficulty that his clients find himself in is due solely to the delay in the Tribunal's issuing of a Witness Order and it is fair to observe, with hindsight and at a distance as we do, that this failure followed many reminders from both parties.

[12]On the face of it however, there was a substantial period of time, even after 23 September, within which to prepare this case. We have considered the reasoning of the Tribunal, and we have been urged quite properly by Mr Bansel to look at the information as it presented itself to the Chairman at the time. None of the detail to which I have referred was addressed to the Employment Tribunal in correspondence. "Ah", said Mr Hitchcock, "well if they wanted to know what the difficulties were they had only to ask." With great respect, that does not seem to us to be the way to present applications to any Tribunal or Court. Tribunals and Courts can reasonably be expected to act upon the information before them.

[13]Furthermore, it is pointed out that the reason why the date fixed at the time in June was in the knowledge of the difficulties of counsel and the need to set aside some weeks when all interested parties on the Appellant's side could be available. But that may have been part of the discussion at the time. If it was not at the front of the Chairman's mind when in October she dealt with the application for an adjournment, she can hardly be criticised for failing to take it into account when these matters were not specifically addressed in the application for an adjournment.

[14]We have come to the conclusion that looking at the matter through the eyes of the Chairman at that time, it is quite impossible to say that there was an error in law in the approach so as to lead to a result which no reasonable Tribunal properly directing itself could have reached. Furthermore, if that decision was reached on the basis of a misunderstanding about counsel, or an incomplete knowledge of the real difficulties that one party had, the remedy was to go back to the Chairman and make a further application with sufficient information to ensure the Chairman did have all the necessary information. Accordingly we find that there is no error of law and that this appeal must be dismissed.

[15]Before we depart from this case however, we wish to observe that we are mindful of the fact that there are on both sides in this case experienced representatives who know the ins and outs of the case better than we do, or than any other judicial body that is coming to it for the first time does. Secondly, we are aware that we have today been told for the first time of what on the face of it are substantial obstacles that make it difficult for the Appellants to be properly ready for the resumed hearing. Thirdly, it is apparent that there is no blame on the information we have had to be attached to the Appellants for the difficulty of their position. Fourthly, we are mindful of the assessment of experienced counsel that the prospect of a fair trial, if it proceeds in his judgment, will be severely prejudiced because of the way things have worked out. And we are also mindful of what we have been told of the steps that have been taken to try to comply with the time limits that were set out.

[16]Accordingly, it seems to us, that whilst there was no error in law in the original decision of the Chairman there is sufficient material before us to be a little concerned that the Chairman herself would wish to be able to form a final judgment about the adjournment on proper information being furnished. We have caused inquiries to be made; the Chairman is prepared to make herself available first thing on next Monday morning and should the Appellant's wish to renew their application for an adjournment, then she would be prepared to entertain it. It is unlikely that this decision will be transcribed in formal form for that time but no doubt counsel's notes can be available or something can be available for the Chairman if necessary. The informal advice to the parties if seeking an adjournment is to tabulate the factual and objective difficulties that do in fact remain, rather than perhaps statements of opinion.